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Commonwealth v. Montini4/27/1998
No. 1771 Philadelphia, 1997
Richard Montini appeals from the judgment of sentence entered in the Court of Common Pleas of Bucks County. We affirm. During the early morning hours of October 13, 1996, Doylestown Police Officer Wayne Jones was stationed in a marked police cruiser in the Mellon Bank parking lot located at the intersection of State and Main Streets in Doylestown. At approximately 2:30 a.m., Officer Jones observed Montini's red Volkswagen sedan stopped at a traffic signal at the intersection of Main and State Streets. Officer Jones then watched Montini turn onto South Main Street and encounter another vehicle that was in the process of parallel parking. Montini crossed entirely into the northbound lane of Main Street to avoid the parking car, a maneuver Jones considered excessive under the circumstances. As a result Jones decided to follow Montini. While trailing Montini for several minutes, Jones observed Montini driving in a very erratic manner. Specifically, Jones observed the following: on Oakland Avenue Montini's car "accelerated and decelerated in an abnormal fashion"; on East State Street Montini's vehicle weaved within his lane of travel and portions of the car twice crossed the double yellow lines. Immediately after Montini turned off East State Street Jones activated his emergency lights and Montini pulled his car off to the side of the road. Upon request Montini rolled down his window and handed Jones his driver's license, registration, and insurance card. While retrieving Montini's identification, Jones smelled a strong odor of alcohol emanating from the vehicle. Jones asked Montini to exit the vehicle and then proceeded to perform several field sobriety tests. First, Jones conducted the "index finger to the tip of the nose test." Jones instructed Montini to "stand erect, head slightly back, close your eyes, extend your arms directly to the side, parallel to the ground. And with the finger that I tell you, touch it to the tip of your nose." Montini was unable to appropriately comply, as he failed to close his eyes or extend his arms as directed even though he did touch his finger to his nose. Jones next conducted the "leg extension" test. He instructed Montini to stand with his feet together and then lift one leg approximately ten inches from the ground and hold the leg in that position until instructed to lower it. Montini also failed this test because he lowered his leg prior to being instructed to do so. Third, Jones performed the "finger counting" exercise. He directed Montini to count to five by touching each digit of one hand to the thumb of the other. Montini was unable to complete this task; Montini lost count. Finally, Jones performed the "heel-to-toe test." This test required Montini to walk seven paces on a line, each step made heel to toe. Although Montini took the requisite steps he failed to take the steps as directed, heel-to-toe.
Based upon all of these circumstances Jones concluded that Montini was incapable of safe driving and transported him to Doylestown Hospital where he submitted to a blood test at 3:24 a.m. The results of the blood test registered Montini's blood alcohol content (BAC) at .19%. Montini was charged with driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(1), and driving while his blood alcohol content was 0.10% or greater, 75 Pa.C.S.A. § 3731(a)(4). Following the denial of Montini's motion to suppress, Montini was convicted at a non-jury trial of both charges. This appeal followed. Montini presents the following issues for our consideration:
(1) Whether the trial court erred in failing to suppress evidence of the defendant's blood alcohol content based upon the arresting officer's lack of probable cause for the
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